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Brandon M., Family Law Attorney

Category: Family Law

Satisfied Customers: 12237

Experience: Attorney experienced in all aspects of family law

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My wifes ex husband is currently in prison for medicare fraud

Resolved Question:

My wife's ex husband is currently in prison for medicare fraud in Brooklyn,NY. When he was arrested he stopped paying 2K/month in child support, and ceased payments on my wife's distributive award, and I started paying for her daughter's private school which he is required to do. Does the child support accrue with interest while he is in prison? He stopped paying 18 months before he went to prison. His name is XXXXX XXXXX title to his parents 600K condo in Brooklyn. Can we put a lien on it for back child support? We will also get a judgment on the failure to pay the distributive award (45K) and accrued payments for private school (35K) and then would like to add that to the lien. Can we do this?Thank you.

Well, I think that I have mostly good news for you. You had several questions, so I will try to address them all.

Customer:

ok thanks

Brandon M. :

I should start by clarifying that because the nuances of every case are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, your first question was whether a parent being incarcerated in prison tolls the accrual of interest on child support. The answer to that question is "no". Child support arrears continue to accrue interest even if the parent owing money is in prison...

Customer:

that's good. 9% interest is not bad

Brandon M. :

You also asked about whether a lien can be place on real property to satisfy a distributive award and for payments for private school. A lien can also be generally placed on real property for those types of debts as well. However, I should ask, how old are those debts?

Customer:

he started defaulting about 2 years ago

Customer:

we do not have an official judgment of default on that yet. My wife's attorney says he is working on it but he is not always easy to reach. But I assume the child support portion can be taken care of by child support services who can do the lien on the child support amount first

Customer:

But he is asking for downward modification from the court since he is in jail has the FBI took over all his bank accounts and claims he has nothing

Brandon M. :

Child support services does have the resources to enforce any arrears.

Customer:

that's good. so they would place the lien?

Brandon M. :

Typically, someone in prison has cause to modify any continuing support to zero. However, that would not relieve the parent of arrears.

Customer:

but can the judge also take the position that him being in jail was his fault and deny downward modification?

Brandon M. :

Child support services can use any enforcement tool available, including liens on real property. Whether they use that particular enforcement mechanism is up to them. Some enforcement mechanisms are more time consuming and costly to them, so as a matter of local office policy they may use some and not others. But legally, they can enforce through a real estate lien.

Brandon M. :

A court can take that position, but I wouldn't expect it for any given case. It's not the normal outcome.

Customer:

But obviously the distributive award he still owes and the private school - which he is responsible for - that can all be added to the lien when we get the judgment for that in the civil court?

Brandon M. :

I do apologize for the slight delay--unfortunately, I'm not getting alerts when you post. It is a software problem. I do apologize....

Customer:

its ok

Brandon M. :

To answer the question, the law does not prohibit multiple liens being on the same piece of real property.

Brandon M. :

Child support services will not "add" other debts to their lien, but multiple liens are possible.

Customer:

Ok. So the worst news for me is that as long as he is in prison child support could be modified but interest on everything else that is owed will accrue, right? Including the distrib award and all miscellaneous items he is responsible for in the divorce agreement?

Brandon M. :

That's the law. Child support interest (or any other type of interest) accrues while a debtor parent is in prison, but the court will usually allow for modification of the award itself.

Brandon M. :

Does that make sense?

Customer:

It makes sense but it certainly sucks.

Customer:

With a lien, can I force the owners to sell the condo? Or does it have to be a certain percentage of the property amount?

Brandon M. :

Who is living in teh condo now?

Brandon M. :

*the

Customer:

His parents. His mothers name is XXXXX XXXXX the title. I don't really want to kick them out but I want to have the option if they don't pay. They have the money, but just don't want to.

Customer:

He is incredibly arrogant and here I am paying for his daughter's private school, and although I can afford it, I want my money back.

Customer:

And he owes my wife a lot as well. She deserves it.

Brandon M. :

I understand, and these matters are complex because of the people that they involve. The reason I asked about who was living in the home is that New York generally recognizes a homestead exemption for debtors. A homestead exemption protects someone from being forced out of the home in which they live due to a debt. If there is a rental property, it's much easier to force a sale to satisfy a debt, but kicking someone out of the home in which they live typically isn't an option.

Customer:

But he does not live there. Its his parents. But I guess by having the lien I prevent them from refinancing or selling

Brandon M. :

So for those reasons, I'll emphasize again that because the nuances of every case are different, this information should not be relied upon as complete or advice without consulting in person with counsel, but these are the general rules.

It's not a question of whether the debtor lives in the home; it's a question of whether the home's sale is being forced when parties on the title use it as their principle residence.

Brandon M. :

Does that make sense?

Customer:

Ok, I understand. One more question: The law that supposedly prevents child support from accruing was passed in 2007, one week after their divorce was finalized. So we may be in luck - if that was the law that the State is using?

Brandon M. :

"The law that supposedly prevents child support from accruing"... I'm not sure to what law you're referring. I do apologize.

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